159 F. Supp. 3d 448
S.D.N.Y.2016Background
- Jonathan Pesce has a history of generalized tonic-clonic seizures beginning in 2000; he was treated with Depakote and has been seizure-free on medication for several years.
- After restarting medication in 2008 Pesce served as a volunteer firefighter and paramedic, holds a NY driver’s license, and works as a paramedic since 2014.
- Pesce applied to the NYPD (exam score ~89.4) and was medically disqualified in 2010 because he has epilepsy and is taking anticonvulsant medication; the initial disqualifying decision was made without in-person examination by the NYPD surgeons who relied on medical records.
- On administrative appeal, an NYPD neurologist affirmed the disqualification; the Civil Service Commission affirmed the NYPD decision in 2011.
- Pesce sued the City, NYPD, and individual NYPD officials under the ADA, Rehabilitation Act, and NYCHRL alleging discriminatory disqualification and a blanket policy excluding medicated seizure patients.
- The district court denied the defendants’ summary judgment motion in all respects except it dismissed claims against the NYPD as a non-suable entity; claims against City and individual officials (official-capacity injunctive claims) remain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pesce was "otherwise qualified" under the ADA to be a police officer | Pesce (and his neurologists) say his epilepsy is fully controlled on Depakote and he can perform all essential functions | NYPD doctors contend any candidate on anticonvulsants (or with seizure history) is unfit due to risk of seizures while driving, using firearms, or under stress | Genuine factual disputes about seizure risk and medical evidence preclude summary judgment for defendants |
| Whether NYPD had a legitimate non-discriminatory reason (or pretext) for disqualification | Pesce argues the disqualification was disability-based and unsupported by individualized medical assessment | Defendants say the disqualification was a legitimate medical judgment about safety and job fitness | Because parties agree disability caused the adverse action, pretext analysis is unnecessary; but factual disputes over fitness remain for trial |
| Validity of a categorical/blanket policy excluding medicated seizure sufferers and the "direct threat" defense | Pesce argues categorical exclusion is per se discriminatory and requires individualized assessment | Defendants invoke the ADA direct-threat/business-necessity defense to justify a job-related, consistent-with-business-necessity exclusion | Defendants failed to show absence of material fact that medicated candidates pose a direct threat; summary judgment denied on this defense |
| Proper defendants and available relief against individual NYPD officials | Pesce sued NYPD and individual officials; seeks injunctive relief against officials in official capacity | Defendants contend NYPD is the proper defendant and individual claims under ADA/Rehab Act are improper | Claims against NYPD dismissed (non-suable); official-capacity injunctive claims against individual defendants may proceed (Ex parte Young doctrine) |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (Sup. Ct. 1973) (burden-shifting framework for discrimination claims)
- D’Amico v. City of New York, 132 F.3d 145 (2d Cir. 1998) (employer may rely on safety/risk where employee posed ongoing substance-abuse risk)
- McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) (elements of prima facie ADA employment claim)
- Bragdon v. Abbott, 524 U.S. 624 (Sup. Ct. 1998) (objective medical evidence required to establish direct-threat defense)
- Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (Sup. Ct. 2002) (recognizing ADA affirmative defense where employment would pose direct threat to health)